Opinion regarding insurance company considers definition of ‘ever’

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An Indiana Court of Appeals panel was split in an opinion released today that considered the definition of “ever” on a home insurance application when it came to whether the homeowners insurance coverage was ever “declined, cancelled, or non-renewed.”

While the majority opinion found that “ever” should include all insurers who may have cancelled the plaintiffs’ coverage, a dissenting judge wrote that in this case, “ever” should have only included the cancellations by the defendant insurance company.

In Allied Property and Casualty Insurance Company v. Linda Good and Randall Good, No. 85A04-0905-CV-240, Linda and Randall Good had a fire March 16, 2003, that destroyed their home and all of its contents.

Only Linda’s name was on the policy she had with the insurance company. The policy was to last one year, beginning July 2, 2002. The insurance company had neither denied nor paid their claims regarding the fire pending an ongoing investigation concerning the fire’s cause. Linda sued March 9, 2004, for breach of contract based on the non-payment of the claim.

Two trials took place. The first trial was in December 2008, which ended in a mistrial. The second trial in January 2009 was bifurcated to address Linda’s breach of contract claim, to address Allied’s third-party claims against Randall that he made false statements about the fire, and to address Allied’s counterclaims against Linda.

Among Allied’s counterclaims were that Linda misrepresented her insurance cancellation history on the application. If the insurance company had known her true cancellation history, Allied claimed, the company would have either denied her coverage or required a higher premium for the coverage.

After hearing the evidence in the January 2009 trial, the court entered a directed verdict for the Goods. The jury awarded slightly more than $1 million in damages to Linda.

However, the Court of Appeals disagreed with the trial court, finding that because Linda acknowledged that at least one and possibly three insurance companies had cancelled policies held by Linda and Randall, she had indeed misrepresented her cancellation history on the application when she claimed she was never denied coverage.

Linda claimed that because the way the form was worded, she interpreted it to mean whether she was ever denied coverage by Allied, and therefore didn’t include her cancellations from other insurance companies.

The Court of Appeals found that this misrepresentation was material in this case.

“A misrepresentation on an application for an insurance policy is ‘material’ if the fact misrepresented, had it been known to the insurer, would have reasonably entered into and influenced the insurer‘s decision whether to issue a policy or to charge a higher premium,” wrote Judge Melissa S. May for the majority.

However, in a footnote the court clarified this definition by adding, “Our opinion … should not, and cannot, be read to encourage, or even permit, parties to comb through insurance applications in hopes of finding any false statement in an effort to reduce premiums or avoid paying benefits. Only a ‘material’ false representation could permit either result.”

Because of these findings, Judge May wrote, “the trial court erred by denying Allied’s motion for summary judgment. We reverse and remand for entry of judgment for Allied on all counts.”

However, while Judge Michael P. Barnes concurred, Judge L. Mark Bailey wrote a 9-page dissent.

Including an image of the application field in question, he wrote the application field about past insurance cancellations was unclear as to whether “ever” included all insurance companies or just Allied.

“Taking ‘ever’ out of its context seems to me to disregard how a reasonable person could construe the question,” he wrote. “Reading the form as presented above, a reasonable person could indeed interpret the item about prior cancellations as pertaining to the current insurer – particularly since the section heading is ‘INSURANCE COVERAGE,’ not ‘Prior Insurance Coverage,’ ‘Coverage History,’ or the like.”


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